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Clarifying the Confusion on Massage

By Paul Lambert, FCA General Counsel

Friday, 05 September 2014

Do you need a
massage establishment license, fingerprinting, or a criminal background check
if you do massage in your office?

The Department of Health has sent letters
to each massage establishment licensee advising that each person with an
ownership interest in a massage establishment must be finger printed and have a
criminal background check by January 31, 2015 based upon a bill that passed the
2014 Legislature. The letter does not mention that physicians may be exempt
from that requirement or massage establishment licensure altogether. However,
the Department assures me that a memorandum is being mailed explaining the
exemption. Following is a discussion of the bill and exemptions from it.

Chiropractors holding massage
establishment licenses may be exempt from finger printing and criminal
background checks required by January 31, 2015. Effective July 1, 2014
physician owned practices that employ licensed massage therapists who only
treat patients are exempt from the requirements of the massage establishment
statute.1 Physician owned practices that use massage therapists as independent
contractors or who accept non-patients for massage are not exempt from the
massage establishment statute, because they are, in essence, operating a spa.

However, physicians owning a practice that
accept non-patients for massage or use massage therapists as independent
contractors and who were fingerprinted and had a criminal background check
after January 1, 2013 do not have to again be fingerprinted and have another
background check.2

Chiropractors who employ massage
therapists to massage-only patients and are exempt should consider voluntarily
surrendering the massage establishment license to avoid pressure from the
Department of Health to be finger printed. A chiropractor holding a massage
establishment license is subject to all regulations of the establishments,
including finger printing and criminal background checks, as long as the
massage establishment license is extant. The Department of Health assumes that
a chiropractic practice is not exempt, if it holds a massage establishment
license.

A massage establishment license may be
voluntarily surrendered by sending the original license to Mathew Thompson,
Regulatory Supervisor, Board of Massage, Department of Health, 4052 Bald
Cypress Way Bin-C-06, Tallahassee, FL 32399 with a letter stating:

This massage
establishment license # xxx is voluntarily surrendered. §456.043, Florida
Statutes, (2014), does not apply to this practice, because the practice is
owned by (name of doctor(s) owner(s)), DC, and employs massage therapists to
work solely on patients of the practice. See §456.043(13), Florida Statutes, (2014).

In an effort to address illicit behavior
at massage establishments, the Florida Legislature passed HB 1065 during the
2014 legislative session. HB 1065 proposed to require criminal background
checks of all massage therapists and anyone owning an interest in a massage
establishment. The FCA lobby team successfully lobbied an exemption to massage
establishment regulation for chiropractors, allopaths or osteopaths employing
licensed massage therapists who perform massage on the physicians’ patients at
the physicians’ places of practice. That exemption is found at §480.043(3),
Florida Statutes, and reads:

(13) This section
does not apply to a physician licensed under chapter 4583, chapter 4594, or
chapter 4605 who employs a licensed massage therapist to perform massage on the
physician’s patients at the physician’s place of practice. This subsection does
not restrict investigations by the department for violations of chapter 4566 or
this chapter.

FAQs: Following are answers to questions
by members applying the above information.

1.Q: If my LMT is an independent contractor,
do I need to have an establishment license?A: Yes, the operative sentence of the exemption reads: “This section
does not apply to a physician licensed under . . . chapter 460 who employs a
licensed massage therapist to perform massage on the physician’s patients at
the physician’s place of practice.” An independent contractor is not an
employee.

2.Q: The LMT is an independent contractor that
rents a room from me, but keeps her own records and collects the fee for the
massage from the person and processes the payment herself.Am I required to have a massage establishment
license?A: This question describes a
LMT who has a business independent of the landlord chiropractor. In this case,
it is the LMT’s responsibility to maintain a massage establishment license.

3.Q: Is a massage establishment license
required if the LMT is employed by the chiropractor and provides massages at
health fairs? A: Yes, the operative sentence of the exemption reads: “This
section does not apply to a physician licensed under . . . chapter 460 who
employs a licensed massage therapist to perform massage on the physician’s
patients at the physician’s place of practice.” A health fair is not the
physician’s place of practice.

4.Q: Is a massage establishment license needed
if the employed LMT is performing massages on patients when the chiropractor is
not in the office? A: No. A LMT is licensed to perform massages independently
of a physician’s supervision. A massage establishment license is not needed as
long as the LMT only performs massages on the doctor’s patients in the office.